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Supreme Court ruling emboldens prosecutors to fight dismissals if case is complex

Nicole Nayel, mother of homicide victim Fouad Nayel, said ‘there is a little hope now’ that the case of her son’s alleged murder will have some footing. (Dave Chan/The Globe and Mail)

A new Supreme Court ruling on delay is adding fuel to prosecution arguments that a judge was wrong to dismiss a first-degree murder charge in Ottawa.

The case of Adam Picard, accused in the 2012 fatal shooting of 28-year-old Fouad Nayel, could influence several homicides in which judges in Ontario, Alberta and Quebec have dismissed charges because of delay. As the first dismissed homicide case to reach a provincial appeal court, the Picard case may represent prosecutors’ best chance to soften the impact of last summer’s Jordan ruling, in which the Supreme Court established time limits for criminal proceedings.

The prosecution argues that the Picard case was especially complex – a vital consideration in the calculation of delay, both for cases that predate Jordan and those that come after it. Ontario Superior Court Justice Julianne Parfett, in dismissing the murder charge last November, four years after Mr. Picard was charged, called it a typical murder trial. But the prosecutors, citing the June 16 Supreme Court ruling in R v Cody, say the proof of its complexity is very simple.

Accused drug trafficker James Cody waited five years, or twice the new time limit of 30 months in Superior Court, for a trial of just five days. The Supreme Court said on Friday that case was not complex, and the delay was unreasonably long.

By contrast, a six-week trial had been scheduled for Mr. Picard, on top of seven weeks for a preliminary hearing and other matters. (After nearly four years of delay, he applied for and was granted a stay just before his trial was to begin last November.) “That thirteen weeks of court time was required for the prosecution … demonstrated that this was a complex matter,” prosecutors said in a written filing this week with the Ontario Court of Appeal.

The court heard the prosecution appeal in the Picard case last week – but after the Cody ruling, the appeal court asked the prosecution and defence if they wished to make additional arguments.

The Ontario prosecutors cited a line from the Cody ruling: that a complex case is one requiring “an inordinate amount of trial or preparation time.”

That point from the Supreme Court was made in almost identical words by one of the three judges on the Ontario appeal court, Justice David Doherty, in an exchange with Mr. Picard’s lawyer, Howard Krongold, last Monday. Justice Doherty asserted repeatedly that court time (that is, for hearings, not including delay) could be equated to complexity. Mr. Krongold disagreed.

Complexity plays into another central argument of the prosecution: that the Crown was on solid ground when it insisted on using two senior prosecutors in the Picard case, even though, because of their limited availability, it added roughly seven months to the case.

The defence has until Monday to respond.

Justice Parfett said in her written ruling last November that the Crown’s insistence on sticking with its senior prosecutors, despite the delay, was evidence of the “culture of complacency” denounced by the Supreme Court in Jordan. She found that, although the evidence included 2,800 photographs, dozens of witness statements, 6,800 pages of cellphone records, 25,000 text messages and 103,000 lines in Excel of subscriber records from Mr. Picard’s phone, the case was not unusually complex.

She also cited a case released on the same day as Jordan, R v Williamson, in which a young boy had been repeatedly raped by a mentor. The Supreme Court rejected a jury conviction and dismissed the charges. Those charged with serious offences deserve protection of their timely-trial rights, too, she said. But the Supreme Court clarified in Cody that it ruled as it did in Williamson because the defence took repeated steps to keep the trial moving, while the prosecution was “indifferent” to timely justice. Generally speaking, the court said in Cody, seriousness of offences committed prior to the Jordan ruling weigh heavily against a dismissal. “She diminished what significance the seriousness of the charge would have been given,” prosecutors said of Justice Parfett in their legal filing to the Court of Appeal.

Defence lawyer Daniel Brown, who is not directly involved in the Picard case, said the Supreme Court took into account the increased complexity of criminal prosecutions when it established its new time ceilings for delay in Jordan. Also, the court did not backtrack on its opinion that a typical murder trial will not usually be sufficiently complex to justify delay, he said.

Ultimately, “We can expect that cases requiring complex legal motions combined with extensive disclosure and significant trial time will likely fall into the exceptional circumstances category moving forward.” Exceptional circumstances provide a justification for delay.

Nicole Nayel, mother of the homicide victim, said in an interview after reading the prosecution’s new submissions and attending the appeal-court hearing last week, “I think there is a little hope now.” She said she felt the trial judge did not allow for a transitional period in which the old rules carried more weight.

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